Saturday, May 3, 2014

The Sky's the Aggregate Limit | New Jersey Law Journal - Editorial Board

The attention this week went to Justice Stevens who called for a constitutional amendment that would overturn McCutcheon and Citizens United. The NJ law Journal Editorial Board embraces Justice Breyer's approach. - gwc

A majority of the U.S. Supreme Court has abandoned principles of restraint in the area of campaign finance reform. In a period of five years, the court has eviscerated campaign finance laws and jurisprudence decades in the making; has left our country virtually defenseless against the distorting and corrosive effects that immense aggregations of wealth have on the electoral process; has inserted itself prominently into our political process; and has substituted its judgment for that of the members of Congress, who have a ground-level understanding of the ways in which money is used to influence candidates and elected officials.

In 2009, in Citizens United, Chief Justice John Roberts Jr. joined a five- member majority that issued a sweeping decision upending laws that had been on the books for over 100 years and decades of campaign finance case law that had recognized that the societal interest in avoiding corruption and the appearance of corruption provides an adequate justification for regulating corporate expenditures on candidate elections. The case, as originally presented, was narrow in scope. But, in an extraordinary post-oral argument directive, the court vastly expanded the issues to be resolved. Citizens United, as has been well documented, led to unprecedented independent and super PAC spending in the 2010 mid-term and 2012 presidential elections.

Then, three years ago, in McComish v. Bennett, Roberts authored an opinion, joined by the same justices that signed onto Citizens United, that invalidated public financing legislation enacted by Arizona and comparable laws in other states. McComish marked the first time the court had reviewed public financing laws since Buckley v. Valeo rejected First Amendment challenges to our presidential public financing system in the wake of Watergate and concluded that the system was a speech-enhancing alternative to potentially corrupting privately-funded campaigns. The Arizona law in McComish was motivated by a political scandal involving the purchase of legislators' votes and was enacted specifically to advance the interests relied on in Buckley. Moreover, except for a pragmatic and innovative "trigger" provision that did nothing to chill speech and was designed to save taxpayer money and make public financing more affordable, the law invalidated in McComish was essentially the same as the law upheld in Buckley. In short, other than the majority's apparent distaste for public financing laws, there was no good reason for the distinction made by the court.

Now, in McCutcheon v. Federal Election Commission, the same five members, in an opinion once again authored by Roberts, invalidated the longstanding (40-year) aggregate limits on how much an individual can give to all federal candidates and their parties in an election cycle. Until this decision, even the most motivated supporter could not contribute more per election cycle than an aggregate of $124,000 to federal candidates and their party. Now, notwithstanding the base limits that restrict how much an individual can contribute directly to any one candidate ($2,600) or party committee ($10,000 or $32,400 depending on the type of committee), that aggregate sum is $3.6 million, and perhaps more.

The plurality (Justice Clarence Thomas wrote a separate concurring opinion) began its analysis by restating the unremarkable proposition that contributing to political campaigns is a form of speech protected by the First Amendment and that a compelling governmental interest is needed to restrict such speech. The court then held—without the benefit of any evidentiary hearing below and directly contrary to an earlier conclusion reached by the court in Buckley—that large aggregate contributions do not "give rise" to "corruption." That determination, in turn, relied heavily on a narrow definition of corruption that excludes efforts to "garner influence over or access to elected officials or political parties." According to the plurality, Congress may now target only quid pro quo corruption, defined as "a direct exchange of an official act for money"—an act akin to bribery. That definition of corruption is inconsistent with prior case law and, in particular, cannot be reconciled with parts of the court's 2003 decision in McConnell v. FEC, which the plurality, without justification, declined to specifically overrule.

The dissenting opinion, authored by Justice Stephen Breyer, traced the history of campaign finance reform and demonstrated persuasively that the court's earlier cases on the subject have consistently recognized that the anticorruption interest that drives Congress to regulate campaign contributions is far broader than the interest now recognized by the plurality. Significantly, Buckley explicitly held that aggregate limits were constitutional, reasoning that they helped "prevent evasion [through] huge contributions to the candidate's political party." Buckley also concluded that criminal laws forbidding "the giving and taking of bribes" only addressed the most blatant attempts to improperly influence governmental action, and that the concern with corruption extends much further.

And then there is McConnell, where the court upheld provisions of the Bipartisan Campaign Reform Act of 2002 that limited contributions to political parties for activities other than directly helping to elect a federal candidate, e.g., voter registration drives. Those "soft money" contributions had been used for years to circumvent the base limits upheld in Buckley. In McConnell, after reviewing a record consisting of more than 100,000 pages and including testimony from more than 200 witnesses, the court found no evidence of bribery but concluded that large soft money contributions enabled wealthy contributors to gain disproportionate access to elected officials and the ability to influence legislation.

Thus, McConnell, in a decision co-authored by Justices Sandra Day O'Connor and John Paul Stevens, upheld the soft money contribution restrictions for the very reason the plurality in McCutcheon now says is illegitimate: The restrictions reduced the risk not of quid pro quo bribery, but of privileged access to and improper influence upon elected officials.

Noting the plurality's insistence that it was not overruling McConnell's holding about "soft money," Justice Breyer rhetorically asks, "[B]ut how does the plurality explain its rejection of the broader definition of corruption, upon which McConnell's holding depends?" We are still waiting for an answer.

Viewed separately, in each of these cases­—Citizens United, McComish and McCutcheon—the five-member majority upended key precedent and substituted its understanding of how the political process works for the understanding of the legislative branch. Taken together, the court has devastated campaign finance reform and left us with a system where we are much more likely to be governed by those whom the billionaires, labor unions and powerful commercial interests choose to fund. The wreckage left behind is neither modest nor incremental.

Disclosure:. - I am a member of the editorial board of the New Jersey Law Journal